President Trump has threatened to invoke the Insurrection Act, a statute first enacted in 1792, allowing him to deploy the military inside the United States in response to protests in Minnesota. The largely peaceful protests intensified after an Immigration and Customs Enforcement agency officer shot and killed Reneé Good, a Minneapolis mother, after an encounter.
“If the corrupt politicians of Minnesota don’t obey the law and stop the professional agitators and insurrectionists from attacking the Patriots of ICE who are only trying to do their job, I will institute the INSURRECTION ACT,” Trump wrote last Thursday morning on Truth Social, adding that the move would “quickly put an end to the travesty that is taking place in that once great state.” He has already alerted 1,500 troops in Alaska for possible deployment to Minnesota.
If he does it, the action will certainly face legal challenges. Occasional acts of violence do not an insurrection make. But don’t bet on the Supreme Court to block Trump from invoking the law. Before this court, the bottom line is that Trump usually wins.
The vexing question is if Trump really believes there is an emergency, why hasn’t he invoked the insurrection act already? Why in the blue cities of Chicago, Los Angeles and Portland, Oregon did he ignore the Insurrection Act, invoking instead the U.S. Code section dealing with the National Guard — only to be rebuffed by the Supreme Court?
The Insurrection Act is a series of U.S. Code sections that empower the president to deploy the military to suppress insurrections or enforce federal laws when state authorities are unable or unwilling, to do so. The measure was intended as an emergency red handle to supplement, not supplant, civilian law enforcement in situations beyond the reach of local officials.
It has rarely been invoked in our country’s history. And when it has been invoked, it has always been invoked faithfully, not in situations where protests have been largely peaceful.
Twentieth century examples would be President Kennedy’s sending the Army in 1962 to help 300 law enforcement operatives protect James Meredith entering the University of Mississippi. Or in 1992, when President George H.W. Bush deployed the armed forces to California to counter the widespread violence, looting and arson following the acquittal of police officers involved in the beating of Rodney King.
In the latter case, both the governor of California and the mayor of Los Angeles requested help. Neither Minnesota Gov. Tim Walz (D) nor Minneapolis Mayor Jacob Frey (D) has requested such assistance; both are, as a result, under criminal investigation.
Historically, the president’s power to invoke the act has been used sparingly. Since the founding, Americans have harbored a hostility to deploying the military at home, barring exigent circumstances. The Insurrection Act exists alongside the Posse Comitatus Act of 1878, a criminal statute, providing that the military is not to be used for domestic law enforcement.
There are roughly 3,000 federal agents already deployed in the state. And there is no showing that they are unable to deal with the largely lawful protests which are unfolding against perceptions of the high-handed tactics of ICE agents.
Two Democratic governors, Andy Beshear of Kentucky and Gretchen Whitmer of Michigan, have urged Republican governors “to join us in defending states’ rights by speaking out against these threats for a chaotic and un-American federal takeover.”
Americans have been traditionally uncomfortable with the use of the military for domestic law enforcement. Granted, the law gives the president power to deploy troops in an emergency. Trump tried it with the National Guard in Chicago but was shot down by the Supreme Court because of the statutory requirement of showing that “regular forces,” namely the military, would not be effective in executing the law.
The legitimate fear is that the use of the Insurrection Act would be pretextual, starting us down the slippery slope to authoritarianism. In 1933, the German parliament building, known as the Reichstag, was set ablaze. Hitler falsely blamed the Communists and the Jews. The “false flag” event became a pretext to suspend civil liberties and crush political opponents. The Reichstag fire may be cited as a cautionary tale about how authoritarianism can trump a fragile democracy.
Fear of the Insurrection Act is no disrespect to our armed forces. The worry is about how the military is used and for what purpose. The country is facing midterm elections in November. Trump says elections are unnecessary because he has accomplished so much.
There is something sinister in all this. Trump’s poll numbers are down. Voters are unhappy about how he is managing the domestic economy. He could lose his congressional majorities.
Does Trump see the deployment of the military in Minnesota as a dress rehearsal for the armed forces policing key polling places to intimidate voters and seize voting machines? A slippery slope is always dangerous, and a slippery slope from a fragile democracy to a malignant authoritarianism is a real red flag for all of us.
James D. Zirin is a former federal prosecutor in the Southern District of New York and a published legal analyst.
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